Can Australian Law Better Protect Freedom of Religion?

Abstract

The Religious Freedom Review was established to examine whether the human right to freedom of religion is adequately protected in Australian law. This article expounds the relevant human rights principles and identifies several ways in which Australian law fails adequately to protect freedom of religion. These include problems with the interpretation of religious freedom exemption clauses in antidiscrimination laws and the ineffectiveness of Human Rights Charters. The Expert Panel made two important recommendations to address these problems. The first is that the International Covenant on Civil and Political Rights Siracusa Principles should guide the drafting of laws that would limit the right to freedom of religion. The second is that objects clauses in anti-discrimination laws should be redrafted to reflect the equal status in international law of the human right to freedom of religion. This article argues that while re-drafting objects clauses will provide important guidance to the courts, narrow interpretations of religious freedom protections have been a consequence of providing protection merely by way of exemption. In order for Australian law to implement the Siracusa Principles adequately, antidiscrimination laws should be amended to positively enshrine the right of religious bodies to select staff who share their religious convictions so as to maintain their religious ethos.